On February 26, 2014, the Supreme Court heard oral argument for two cases: Highmark Inc. v. Allcare Management Systems and Octane Fitness v. Icon Health and Fitness. Both cases involve disputes regarding the standard for awarding attorney's fees in patent cases--a statute which allows for the awarding of fees in “exceptional” cases.

In Highmark the question is whether an appellate court should defer to a trial court’s decision to award fees based on the lower court’s determination that the patent suit was objectively baseless. In Octane the issue concerns whether the Federal Circuit's two-part test for determining whether fees may be awarded arrogates the trial court's discretion to award fees to accused infringers who prevail.

To discuss these cases, we have Prof. Gregory Dolin, Co-director, Center for Medicine and Law, University of Baltimore School of Law.